Abstract

In 1984, the United States started down a path towards the criminalization of domestic violence that it has steadfastly continued to follow. The turn to the criminal legal system to address domestic violence coincided with the rise of mass incarceration in the United States. Levels of incarceration have increased by five times during the life of the anti-domestic violence movement. The United States incarcerates approximately 2.2 million people, with another 5 million under the scrutiny of parole and probation officers. While the criminalization of domestic violence did not have “a significant causal role” in the increase in mass incarceration in the United States, scholars have argued that the turn to criminal law to address domestic violence has contributed to the phenomenon of mass incarceration. Given the current focus on overcriminalization and decreasing mass incarceration, the time may be ripe to consider alternatives to criminalization of intimate partner violence. In her 2007 article, The Feminist War on Crime, law professor Aya Gruber wrote, “Although I am skeptical about the ability of criminal law to solve social inequality problems, there may be good reasons to keep domestic violence crimes solidly on the books.” Professors Cecelia Klingele, Michael Scott and Walter Dickey have called for the development of scholarship addressing “crime problems for which arrest, prosecution, and conviction are the most appropriate responses to crime, along with instances in which invocation of traditional response is particularly fruitless or counterproductive.” Both generally and specifically in the context of intimate partner violence, these articles ask about the continued utility of criminal interventions. This article takes up those questions and asks: should domestic violence be decriminalized?